In Sexual Harassment Claims, Court Will Consider the Totality of the Circumstances

In Sexual Harassment Claims, Court Will Consider the Totality of the Circumstances

 By: Michael D. DeMeola, Esq.

 Working in a hostile environment can be a very traumatic experience.  Indeed, victims of sexual harassment often experience a pattern of mistreatment over an extended period of time.  This may include physical or verbal abuse, and often includes overtly gender-specific conduct as well as behavior which on its face appears to be gender neutral (behavior that while abusive, when considered independently, may appear to have nothing to do with one’s gender).  When considering whether a victim of sexual harassment is entitled to judicial redress, it is important to take both types of conduct into account.  In fact, when considering a claim brought under Title VII, a court will consider the totality of the circumstances, including both facially gender-specific behavior as well as behavior that is facially gender-neutral.

 Generally speaking, Title VII prohibits, “discrimination against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s… sex.” 42 U.S.C. § 2000e-2(a)(1).  Title VII is not limited to “’economic” or “tangible” discrimination, however.  The phrase “terms, conditions, or privileges of employment” evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).  As the Court explained in Harris, Title VII is violated, “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” Id.  Importantly, an employer is presumed to be responsible where the perpetrator of the harassment was the plaintiff’s supervisor. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

In determining whether an environment is “hostile” or “abusive,” the Court in Harris stated that one must consider all the circumstances surrounding the alleged discrimination. 510 U.S. at 23.  This may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is also relevant to determining whether the plaintiff actually found the environment abusive. Notably, while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id.  Because the analysis of severity and pervasiveness looks to the totality of the circumstances, the crucial inquiry focuses on the nature of the workplace environment as a whole.  To that end, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000).

It is fairly well settled that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was indeed based on his or her gender. See, e.g., Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001).  However, facially neutral incidents may be included among the “totality of the circumstances” that courts consider. Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002).  In determining whether facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender the Court may consider, for example, whether the same individual engaged in multiple acts of harassment, though some may have been overtly sexual and some not. Id.  In Raniola, supra, the Court concluded that, given proof of instances of overt gender hostility by the supervisor of the female plaintiff, a rational juror could have permissibly inferred that his entire alleged pattern of harassment against her was motivated by her gender, even though some of the harassment was not facially sex-based. Thus, the relevant circumstances in Raniola included not only offensive sex-based remarks, but also one facially gender-neutral threat of physical harm by the supervisor who had made the remarks. 

 In Kaytor v. Electric Boat Corporation, 609 F. 3d 537 (2d Cir 2010), the United States Court of Appeals for the Second Circuit adhered to this principle.  In that case, the plaintiff, an administrative assistant in the defendant’s engineering department, brought suit under Title VII alleging that the department manager sexually harassed her.  The plaintiff alleged that in addition to constantly staring at her and making suggestive advances, the manager also threatened her with physical harm.  For example, the manager allegedly told the plaintiff he wished she was dead, saying, “I’d like to see you in your coffin.”  Additionally, on six occasions, the manager allegedly told the plaintiff he wanted to choke her.  In overturning the trial Court’s decision which effectively dismissed the plaintiff’s case, the Appellate Court explained, “…the court should not have excluded from consideration [the plaintiff’s] testimony as to [the manager’s] stated desires to choke her, to see her in a coffin, and to kill her.”  According to the court, one could permissibly infer that the manager’s harsh treatment of the plaintiff was the result of his spurned advances and that the facially gender-neutral threats he directed at the plaintiff were, in fact, because of her sex.

Attorney DeMeola is an associate in Maya Murphy, P.C.’s Litigation Department, practicing primarily in the areas of Labor/Employment Law and Civil Litigation.  He can be reached by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial, Exposing School District to Punitive Damages

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial, Exposing School District to Punitive Damages

By:       Michael DeMeola, Esq.

In August 2006 Robert and Louise Dornfried filed suit against the Berlin Board of Education, its former and current superintendents,  the principal, the athletic director and the coach of Berlin High School football team on behalf of their minor son, Robby.  Robby’s parents alleged on their son’s behalf that, while a student at the high school and a place-kicker on the varsity football team, he was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates. The parents further alleged that they complained of the misconduct to various school administrators, who, despite their knowledge of the behavior, did nothing to stop it.  As a result, Robby was allegedly forced to seek “medical care and treatment” and, halfway through his sophomore year, transferred to Northwest Catholic High School. Robby’s parents brought suit alleging negligence against the various defendants, claiming they knew or should have known that Robby was subjected to incessant bullying, harassment, intimidation, threats and/or acts of violence, but failed to take any action to prohibit, prevent, or even deter such conduct.  In a separate count, the parents claimed the principal, the athletic director and the football coach were reckless in their failure to stop the inappropriate behavior of Robby’s teammates, claiming they exhibited “a blatant and utter disregard for [Robby’s] safety and wellbeing.”  Notably, as permitted by Connecticut law, the plaintiff sought punitive damages under this count. 

 The defendants initially attacked the plaintiff’s suit filing a motion to strike the negligence claims.  Granting the defendants’ motion, the Court held that the principal of governmental immunity barred the negligence claims because, as a general rule, a municipal employee has qualified immunity in the performance of acts that are discretionary in nature.  Although there is an exception when the injured party is an “identifiable person subject to imminent harm,” the Court held that Robby did not fall within that exception, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that, although participation in school sponsored athletic programs is most likely encouraged, participation is on a purely voluntary basis and, therefore, any resulting liability is barred by the doctrine of governmental immunity.  Significantly, although Robby was foreclosed from pursuing his negligence claims, his claim under a theory of recklessness, allowing for the recovery of punitive damages, was left intact.

More recently, however, the defendants filed a motion for summary judgment attempting to eliminate that cause of action as well.  The defendants essentially claimed that, with respect to the plaintiff’s recklessness count, there are no factual issues in dispute and that as a matter of law, they are entitled to a judgment in their favor.  The court denied the defendants’ motion, however, preserving the plaintiff’s case, as well as the potential for punitive damages.  Explaining its decision, the Court first noted that Robby’s parents alleged the defendants had actual knowledge of the bullying yet failed to act, resulting in further escalation of the bullying, and that the defendants knew their failure to act would result in further harm to Robby.  Significantly, the Court then explained that summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent, or ones that involve subjective feelings and reactions.  Citing various factual disputes in this particular case, the Court ultimately held that it is “suffused with subjective impressions, intent, motive and pubic issues which do not easily conform to the standards of summary judgment.” 

This ruling is significant, in part, because, as mentioned, the plaintiffs alleged that the school system, as well as various administrators, were not just negligent, but were actually reckless in their failure to respond to the bullying in question, thus exposing the school system not only to actual or compensatory damages, but punitive damages as well.  This decision is also significant because, although there is always a potential that such rulings will be appealed, the Court effectively gave the plaintiffs a green light to proceed to trial. 

For more information about bullying cases, or if you would like to schedule a confidential meeting to discuss your particular set of circumstances, feel free to contact Attorney Michael DeMeola.  He welcomes all inquiries and can be reached at by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

Not So Fast: Connecticut Courts Consider Length of Marriage – Not Courtship or Cohabitation – When Determining Awards in Divorce

At the outset of a divorce proceeding, many clients will ask what they might expect from a court – or in a settlement agreement – in connection with alimony or the division of marital assets.  One of many statutory factors a court may consider in fashioning support orders or property distribution is the length of the parties’ marriage.  See C.G.S. § 46b-81, 82.  With increasing frequency over the past several decades, however, many parties may enter a divorce proceeding with a significant period of time before the marriage during which the parties lived together as unmarried people – sharing home expenses, purchasing assets together, and accumulating marital wealth (or debts).  The common expectation is that a judge would consider not just the length of the parties’ marriage, but also the length of time they lived together as unmarried people when determining what awards would be appropriate in a divorce.  The law, however, takes a sharply different view.

Like many other states, Connecticut does not recognize common-law marriage as a matter of public policy.  Indeed, the law “has been construed to require the marriage contract to be entered into before authorized persons and with certain formalities which the state has prescribed.”  Hames v. Hames, 163 Conn. 593 (1972).  Although two persons might cohabit and conduct themselves as a married couple, the law of this state neither grants to nor imposes upon them marital status.  McAnerney v. McAnerney, 165 Conn. 277 (1973).  Cohabitation by unmarried individuals does not in and of itself create any legal or support obligations.  Boland v. Catalano, 202 Conn. 333 (1987).

Given the clear distinction in the common law between marriage and cohabitation, and in awarding greater rights and protections to people who make the formal legal commitment of marriage, the Supreme Court has determined that it would be incongruous for a divorce court, when entertaining financial orders, to take into account a period of premarital cohabitation as an additional equitable consideration.  Loughlin v. Loughlin, 280 Conn. 632 (2006).

In other words, neither party in a divorce action may seek additional protections, rights, or awards from the court based simply on the length of time the parties had lived together prior to their marriage.  Nevertheless, the Loughlin holding has left a window of opportunity open – however narrow – which might allow a court to consider “events” that occurred during the period of cohabitation as “indirectly” bearing on other statutory criteria for awards of support and equitable distribution (such as the health, station, occupation, amount and sources of income, vocational skills, and employability of the parties).  Only a court’s strict consideration of premarital cohabitation as part of the “length of marriage” in a dissolution action is improper and prohibited by law.

In the event that your marriage was preceded by a significant period of premarital cohabitation, you should consult with a knowledgeable and experienced attorney to determine your rights in a divorce action. Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.